2 Dueling Visions of Human Rights in China

The U.S. Congressional-Executive Commission on China (CECC) released its annual report on human rights and the rule of law in China on Thursday. The report paints a dark picture of life under the Communist Party of China (CPC). In its introduction, the report notes that Chinese President Xi Jinping, who came to power in 2013, “has overseen a deterioration in human rights and rule of law conditions in China marked by greater consolidation of his own power … through forced ideological conformity and the systematic persecution of human rights lawyers and defenders.” Part of that “ideological conformity” is a stern pushback on Western staples like freedom of the press, freedom of religion, and a legal system outside Party control – all of which have been the subject of corrective speeches by Xi in the past year.

Interestingly, the CECC’s report was released only a few days after China unveiled its own human rights agenda: the National Human Rights Action Plan of China (2016-2020). The full text, in English translation, is available from Xinhua. It’s the third NHRAP in China since 2009; the previous two covered the periods from 2009-2010 and 2012-2015.

The fortuitous timing of the two reports allows for a clear glimpse of how the CPC’s definition of “human rights” differs from the prevailing Western view. In China, the NHRAP makes clear, human rights must always take a backseat to Party rule, justified through appeals to “stability” and pre-existing laws. In China, granting rights “in accordance with the law” is generally code for “as long as it does not cross CPC red lines.”

Many of the points criticized in the CECC report are also present, albeit in vague generalities, in the NHRAP. However, the very first objective of the NHRAP showcases perhaps the sharpest difference between the two. The Chinese conception of human rights starts (and, all too often, ends) with the idea of economic and material prosperity. Thus, the number one promise of the NHRAP is to “improve the people’s standard of living and quality of life” – including steps that would never appear in a Western human rights framework, such as creating stronger intellectual property rights, improving China’s transportation networks, and “establishing a dissemination system of China’s fine cultural traditions.”

On other areas, the CECC and NHRAP are discussing the same subjects, but effectively speaking different languages. It’s often been pointed out, for example, that the Chinese emphasis on “rule of law” or fazhi is better translated as “rule by law,” as the CPC has repeatedly made clear that it will remain above the law, and not the other way around.

The NHRAP makes a number of promises dealing with legal reform: “China will enforce the law in a strict, procedure-based manner, and protect citizens’ personal rights and dignity; [and] promote judicial justice and guarantee litigants’ right to a fair trial.” Yet even a cursory scan of the CECC report shows little indication that Beijing is seriously committed to these goals. The CECC reports a total of 1,300 political prisoner cases in China. The CECC’s conclusion: “Rule by law has taken deeper root as the Party and government use the law to repress and control China’s citizenry, yet disregard the law when it does not serve their priorities.”

The NHRAP does make some solid promises that could address concerns raised by the CECC report – namely renewed efforts to prevent the use of torture in extracting confessions (including expanding requirements for video-taping interrogation sessions), increasing defense lawyers’ access to their clients, and implementing standardized controls on the practice of “residential surveillance” (ironically, providing legal guidelines for what is considered a form of extralegal detention in the West).

But the sad truth is that China has made many of these claims before, and continues to fall far short on implementation. As the CECC report notes, “the UN Committee against Torture concluded in late 2015 that China has failed to eliminate torture, enforced disappearances, deaths in custody, and numerous other forms of ill-treatment in detention.” Defense lawyers continue to be denied access to clients in politically sensitive cases and in some instances are not given advance notice of the trial date. As for residential surveillance, the CECC points out that the UN Committee Against Torture already considers that practice “de facto incommunicado detention.”

It’s a similar story on freedom of expression, and particularly the right to criticize the government. While the NHRAP pledges that “great store shall be set on social sentiments and public opinions as expressed on the Internet,” the CECC report accuses Chinese officials of “exploit[ing] vague provisions in Chinese law to prosecute citizens for exercising their right to freedom of speech.” Indeed, the NHRAP adds the caveat that “citizens’ freedom of speech on the Internet” will be protected “in accordance with the law.” That’s small comfort to netizens, given that China has a law on the books allowing the prosecution for “spreading rumors” online.

China’s idea of free expression and political participation, as the NHRAP makes clear, is when citizens practice both rights through channels provided by the Party. To that end, the plan calls for government agencies to improve the channels for registering official complaints; broaden the scope for “social groups, specialists, and scholars” to consult with the government on draft legislation; and allow more media supervision (somewhat at odds with Xi’s exhortation earlier this year for state media to remember that their job is to transmit the Party line effectively to the masses).

These brief examples from two far longer documents showcase the differing conceptions of human rights. In China, human rights are a gift bestowed by the Party according to its will – and retracted just as easily. In the West, human rights are presumed to be universal, beyond the ability of any government to legitimately circumscribe. That contradiction is why, as the CECC report outlines, China’s government has moved so sternly to counteract any embrace of the idea of universal values, which the CPC labels a nefarious plot by “hostile forces” to disrupt China.